666 F.

2d 729

Filiberto Guerrero FIALLO, Plaintiff, Appellant,

v.
Irba Cruz de BATISTA, et al., Defendants, Appellees.
No. 80-1642.

United States Court of Appeals,

First Circuit.
Submitted June 5, 1981.
Decided Dec. 17, 1981.

Vilma Santiago Irizarry, Nora L. Rodrigues Matias, and Ivonne Diaz De

Carreras, Rio Piedras, P. R., on brief, for plaintiff, appellant.
Hector A. Colon Cruz, Sol. Gen., and Lorraine Riefkohl De Lopez, Asst.
Sol. Gen., Dept. of Justice, San Juan, P. R., on brief, for defendants,
appellees.
Before COFFIN, Chief Judge, ALDRICH and BREYER, Circuit Judges.
COFFIN, Chief Judge.

Plaintiff is an inmate at the Guayama Regional Detention Center in Puerto

Rico. In this appeal, we are asked to determine whether a federal cause of
action may be founded either on the Corrections Administration's failure to
transfer him to a residential drug treatment facility or on the disappearance of
plaintiff's photographic equipment from a prison official's custody.

In June, 1978, plaintiff wrote a letter to a judge of the district court, who
referred it to a U.S. Magistrate for his recommendations. The Magistrate found
that the letter made three allegations: (1) that the plaintiff had requested and
received a recommendation to be transferred to a drug rehabilitation center and
six months had transpired without any action on this request, (2) that his mail
was being interfered with, and (3) that he had been physically threatened by a
prison official. The Magistrate recommended that the letter be filed as a civil
rights complaint and that a legal services attorney be appointed to represent
plaintiff. This recommendation was approved, and plaintiff filed a formal

complaint on October 6, 1978. This complaint named as defendants five

supervisory officials of the Corrections Administration, refined the three factual
allegations made in the letter into formal claims for relief, and included two
additional claims-that illegal restrictions had been imposed on plaintiff's
visitation rights and that $2,800 worth of plaintiff's photographic equipment
had been lost or stolen while in the defendant's possession. Before trial,
plaintiff agreed to have three of his claims (pertaining to mail interference,
official threats, and visitation rights) tried as part of a separate class suit. The
district court then dismissed plaintiff's other two claims (pertaining to transfer
and property loss) for failure to state federal causes of action. On appeal,
plaintiff argues that the district court erred in not recognizing a federally
protected right to transfer to a drug rehabilitation center, in not considering the
property loss claim, and in reaching its conclusions so summarily. We find no
error.
3

Plaintiff suffers from drug addiction. He received treatment in institutional

programs at the prisons where he was incarcerated. Desiring more
comprehensive therapy, he sought to be transferred to a residential drug
treatment facility operated by the Commonwealth's Department of Addiction
Services.1 On June 11, 1978 the Classification and Treatment Committee of the
Guayama Detention Center recommended plaintiff's transfer to a residential
drug-addiction rehabilitation center. His case was referred to the Inter-Agency
Transfer Committee for approval. On June 22, 1978, the Transfer Committee
requested psychiatric and psychological evaluations from the Classification,
Diagnosis and Treatment Center of the Corrections Administration. The Center
recommended that, in light of plaintiff's chronic addiction problems and antisocial personality traits, he remain in an institution where he could receive
group therapy and vocational training. On September 18, 1978, the
Classification and Treatment Committee transferred plaintiff to the Ponce
District Jail, so that he could receive additional addiction treatment and
vocational courses. On November 23, 1979, the Transfer Committee finally
denied plaintiff a transfer to a residential treatment facility, based on "his past
criminal history, nature of crimes and circumstances of these."

Plaintiff's specific claim is that he has a right to receive treatment for his drug
addiction at the residential facility operated by the Department of Addiction
Services. Plaintiff's argument casts this right in two alternative forms: as part of
a general constitutional right to rehabilitation and as a liberty interest protected
by the due process clause. Accepting all of plaintiff's factual allegations as true,
we are unable to find that he has been deprived of any constitutional right.

We are unaware of any authority for the proposition that a prison inmate has a

federal constitutional right to rehabilitation. Indeed, all indications appear to be

to the contrary. See Hutto v. Finney, 437 U.S. 678, 686 n.8, 98 S.Ct. 2565, 2571
n.8, 57 L.Ed.2d 522 (1978); cf. Rhodes v. Chapman, --- U.S. ----, 101 S.Ct.
2392, 69 L.Ed.2d 59 (1981) (restrictive jail conditions alone are not
constitutional violation). At the very most, rehabilitation is but one of several,
equally legitimate, penological purposes. See Nadeau v. Helgemoe, 561 F.2d
411, 414 (1st Cir. 1977). Plaintiff notes that the Commonwealth, in its
Constitution, has made rehabilitation its preeminent corrections goal.2 But
whatever rights the Puerto Rico Constitution may confer on plaintiff-rights that
he could presumably vindicate in a Puerto Rico court-it does not create any
federal right to rehabilitation.
6

The substantive federal right most closely implicated by plaintiff's allegations is

the Eighth Amendment right not to be denied necessary medical treatment, a
right which encompasses drug addiction therapy. E.g., Inmates of Allegheny
County Jail v. Pierce, 612 F.2d 754, 760-61 (3d Cir. 1979) (denial of methadone
treatment to pretrial detainees). The facts of plaintiff's case, however, fall far
short of stating an Eighth Amendment claim. "In order to state a cognizable
claim, a prisoner must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S.
97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Here plaintiff clearly does
not allege deprivation of essential treatment or indifference to serious needs,
only that he has not received the type of treatment which he desires.

Plaintiff also argues that his Fourteenth Amendment right to due process was
violated. He contends that Puerto Rico's Constitution and statutes endow him
with a justifiable expectation that he will be transferred to a residential drug
treatment center. He contends further that this expectation amounts to a liberty
interest protected by the due process clause.

Plaintiff's first source of allegedly justified expectations is the Puerto Rico

Constitution's provision adopting a rehabilitative goal. See note 2 supra. Yet
this provision provides only for "adequate treatment" toward "moral and social
rehabilitation", "within the limits of available resources". It creates a justifiable
expectation only of treatment in the most general sense, and plaintiff does not
allege complete denial of an essential treatment. The broad language of the
general policy statement cannot justify plaintiff's expectation that he would
receive a specific type of treatment. Cf. Lombardo v. Meachum, 548 F.2d 13,
15 (1st Cir. 1977) (interpretation of statutes setting broad policy objectives for
Massachusetts correctional system).

Second, plaintiff argues that a liberty interest in such transfers was created by a

statute: P.R.Laws Ann. tit. 3, 401m (1979 Supp.). He contends that the statute
fosters the belief that all inmates meeting certain criteria will be transferred.
While we are without the benefit of any interpretation by Puerto Rico courts,
we think this statute does not create the asserted liberty interest. Section 401m
speaks in discretionary, not mandatory terms. Section 401m(a) provides that the
Secretary of Addiction Services may extend treatment to inmates within
correctional facilities only "upon consent of the Correctional Administrator."
With respect to the transfer of inmates to an outside facility, section 401m(c)
establishes a "Transfer Committee" to determine whether an inmate qualifies
for additional treatment and to make recommendations regarding transfer.
Although the Committee's determination of the need for additional treatment is
final, "(t)he administrator shall make the final decision in regard to the transfer
of convicts". The section then provides that "The Administrator may transfer
any convict who has fulfilled the above requirements...." 401m(c)(3)(a)
(emphasis added). Absent other, more mandatory provisions, such discretionary
language fatally undermines the argument that the Commonwealth led plaintiff
to a justifiable belief that he was entitled to receive a transfer. See Connecticut
Board of Pardons v. Dumschat, --- U.S. ----, 101 S.Ct. 2460, 2465-2466, 69
L.Ed.2d 158 (1981); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11-12,
99 S.Ct. 2100, 2105-2106, 60 L.Ed.2d 668 (1979) (liberty interest recognized
under a parole statute using the word "shall"); Meachum v. Fano, 427 U.S. 215,
96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (transfer made by prison officials under
discretionary power does not infringe protected liberty interest).
10

We have found nothing to suggest limitations on the Administrator's

discretion.3 Section 401m(c)(2) sets forth a list of factors, but they purport to
bind only the Transfer Committee, not the Administrator. Plaintiff has not
argued that prison officials traditionally limit their discretion to those factors or
that any established policy requires them to grant a transfer to every inmate
who satisfies the listed requirements. See Vitek v. Jones, 445 U.S. 480, 489-90,
100 S.Ct. 1254, 1261-62, 63 L.Ed.2d 552 (1980); Garcia v. DeBatista, 642 F.2d
11, 14 (1st Cir. 1981). Such a proposition would be implausible, since the
statute clearly does not require the Administrator to approve all transfers
recommended by the Committee, nor does it speak of the Administrator
"reviewing" the Committee's findings. It would appear that the Administrator is
to make a discretionary judgment, on the basis of penological experience, about
whether transfer is appropriate. Although the Administrator's decision may
often be in favor of transfer, we do not believe that the statute gives inmates
reason to believe that their desire for transfer has been crystallized into an
entitlement. Cf. Connecticut Board of Pardons v. Dumschat, supra, (favorable
action by Board of Pardons in 75 per cent of cases does not create a liberty
interest).

11

Finally, plaintiff argues for a liberty interest in securing a transfer because its
refusal inflicts a "grievous loss" on him. He contends that this loss follows not
only directly, but also indirectly by reducing his chances for work release, other
types of transfer, and parole. Assuming that the "grievous loss" approach to
identifying protectible liberty interests continues to have some vitality, Garcia
v. DeBatista, supra, at n.8, we can identify no such loss. We do not doubt that
release to a drug treatment facility brings opportunities and amenities that are
not available to the general prison population. But this only demonstrates that
the transfer may be desirable, not that someone who is denied transfer has been
deprived of a liberty. "There is a crucial distinction between being deprived of a
liberty one has, as in parole, and being denied a conditional liberty one desires."
Greenholtz v. Nebraska Penal Inmates, supra, 442 U.S. at 9, 99 S.Ct. at 2105.
Unlike an inmate who has been released on parole, e.g., Morrissey v. Brewer,
408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), or an inmate who has
been granted release to a "halfway house", Garcia v. DeBatista, supra, plaintiff
has never enjoyed any measure of conditional liberty.

12

We conclude that the district court was correct in holding that plaintiff had no
protected right, expectation, or entitlement to be transferred from the general
prison to a residential drug treatment center. The denial of plaintiff's application
for transfer is therefore not subject to procedural scrutiny under the Fourteenth
Amendment.

13

The district court also declined to consider plaintiff's allegation that while he
was an inmate at the Rio Piedras Penitentiary he placed some personal
photographic equipment in the office of the prison's Director of Sports, that this
equipment disappeared, that defendants have failed to locate this equipment,
and that this sequence of events constituted an illegal confiscation of property
in violation of the Fifth and Fourteenth Amendments. The district court found
this allegation to be a state law claim whose consideration depended upon
retention of the first claim. At the time the district court entered its order most
appellate courts, with some disagreements, had held that a prison inmate who
had alleged that his personal property had been stolen or lost while in custody
did state a federal cause of action. Compare Alexanian v. New York State
Urban Development Corporation, 554 F.2d 15 (2d Cir. 1977); Carter v. Estelle,
519 F.2d 1136 (5th Cir. 1975); Russell v. Bodner, 489 F.2d 280 (3d Cir. 1972),
with Bonner v. Coughlin, 545 F.2d 565 (7th Cir. 1976) (en banc). Since that
decision, however, the Supreme Court has held that where a prison inmate
alleges a property loss due to official negligence, where he does not allege that
the loss of his property occurred as the result of some established set procedure,
and where the state offers other ways for the inmate to remedy his loss, there is
no violation of due process. Parratt v. Taylor, --- U.S. ----, 101 S.Ct. 1908, 68

L.Ed.2d 420 (1981). We read plaintiff's complaint as alleging no more than

negligence on the part of individual prison officials. Puerto Rico authorizes
damage actions to recover up to $15,000 for negligent acts by public officials
within the scope of their duty. P.R.Laws Ann. title 32, 3077(a). Such a
damage action "could have fully compensated the respondent for the property
loss he suffered". Parratt v. Taylor, supra, --- U.S. at ----, 101 S.Ct. at 19161917. Therefore, the complaint does not set forth a federal claim.
14

Finally, we see no merit in plaintiff's contention that the district court should
have denied defendants' motion because there remained genuine issues of
material fact. Plaintiff directs us to issues concerning the circumstances of his
transfer request, the reasons why his request was denied, and the actual fate of
his photographic equipment. None of these issues, however, is material to any
cognizable federal claim, for the reasons we have set forth above.

15

The judgment of the district court is affirmed.

Of the U.S. Court of International Trade, sitting by designation

The Department of Addiction Services was created as an executive-level

department within the Commonwealth government by P.R.Laws Ann. tit. 3,
401 (1979 Supp.). Under section 401m, the Secretary of this Department is
given the duty to implement a program for treating addicted inmates who are
under the custody of the Corrections Administration. The Secretary may
establish programs for treatment within correctional institutions and the
Corrections Administration may transfer inmates to other facilities for
treatment under the Secretary's direct supervision

Article VI, section 19 of the Commonwealth Constitution provides in part:

"It shall be the public policy of the Commonwealth ... to regulate its penal
institutions in a manner that effectively achieves their purposes and to provide,
within the limits of available resources, for adequate treatment of delinquents in
order to make possible their moral and social rehabilitation." P.R.Laws Ann. tit.
1, at 258.

On appeal, the government has produced certain "internal regulations"

concerning procedures to be used and factors to be considered in deciding
whether transfer to a residential drug treatment facility is appropriate. It is not
at all clear who allegedly promulgated these regulations, or whether they are
addressed to an individual prison's Classification and Treatment Committee, to

the Inter-Agency Transfer Committee, or to the Administrator of the

Corrections Department. Moreover, the appellant challenges the accuracy of
these documents and questions whether they have "lawfully issued for due
enforcement". For purposes of this appeal, we accept appellant's challenges and
decline to consider the documents